Tata Motors Ltd. Vs. the State of Jharkhand and ors. - Court Judgment

Excerpt:
labour and industrial-industrial disputes act, 1947-section 33-c(2)-service benefits-amended reference decided in favour of petitioners holding that there was no employer and employee relationship-by impugned order labour court held that respondents were employees of petitioner and petitioner was directed to make payment to respondent-unless issue of employer-employee relationship and as to whether they were workmen or not of employer is determined, question of directly invoking section 33-c(2) cannot be justified- there was no determination of a right nor entitlement was decided which has to proceed before invoking section 33-c(2)-besides, second application for same relief under section 33-c(2) is barred by principles of res-judicata more so when appeal preferred against order passed before high court was also dismissed-labour court traveled beyond scope of jurisdiction and authority in passing order under section 33-c(2)-impugned order quashed-petition allowed. - constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - 10. it is well settled that the workman can proceed under section 33c(2) only after the tribunal has adjudicated on a complaint under section 33a or on a reference under section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman.ajit kumar sinha, j.1. the present writ petition has been preferred for the following relief:(a) for issuance of a writ of certioran or in nature thereof for quashing/canceling/rescinding- (i) the order date 20/12/2003 (annexure-9) passed by learned labour court, jamshedpur in a proceeding under section 33'c'(2) of industrial disputes act in m.j. case no. 15 of 1988, wherein the learned labour court held that real employer of the respondents nos. 2 to 41 is the petitioner and further directed the petitioner to pay rs. 57,823,00 to each of the respondents.(ii) the order dated 25.10.1989 by learned labour court, jamshedpur in above proceeding being m.j. case no. 15 of 1988 (annexure-7) refusing to treat the decision of earlier similar proceedings being m.j. case nos. 1, 3, 4 and 5 of 1979 (annexure-2 to series to 5) as res-judicata.(iii) the order dated 11.06.1991 passed by learned labour court, jamshedpur in above proceeding being m.j. case no. 15 of 1988 (annexure-8) whereby he rejected the petitioner's petition dated 16.04.1990. by petition dated 16.04.1991 the petitioner has challenged the authority and/or jurisdiction of learned labour court, jamshedpur to the effect that it had no jurisdiction to abolish the contract labour system even by implication, therefore, it did not have jurisdiction to deal or decide the issue/matter raised in the case about employee relationship. (b) for issuance of a writ of mandamus or in nature thereof commanding / restraining the respondent no. 1 from enforcing the order dated 20.12.2003 as it will have effect of abolition of contract labour by an incompetent authority and contrary to the provisions contained in contract labour (regulation and abolition) act.2. the main contention raised by the learned senior counsel mr. v.p. singh appearing on behalf of the petitioner is that the order passed under section 33'c'(2) of industrial dispute act is without jurisdiction and not maintainable. he further submits that there was no employer and employee relationship and there was no determination of any dispute more so when the earlier amended reference dated 5.7.1995 specifically referred the dispute with regard to employer and employee relationship for adjudication. the further case of the petitioner is that in any event the impugned order dated 20.12.2003 is barred by the principles of res-judicata.3. the learned counsel for the respondents submits that they are the employees of the petitioner and even the p.f. was paid by telco and thus there was employer and employee relationship.4. be that as it may, there is no dispute about the fact that even in the earlier round petition under section 33'c'(2) of industrial dispute act was moved before learned labour court, jamshedpur on behalf of the same workmen and by a detailed speaking order dated 2.2.81 it was held as under:7. 'admittedly the applicant are not workmen of telco; rather they are workmen of the said three contractor's, so their claim for wages and benefits at par with the wages and benefit of the workmen of telco can not be decided in a proceeding under section 33'c'(2) of the industrial dispute act. if they have any grievance on this score they are at liberty to raise an industrial dispute. in the result, it is therefore.5. the respondents workmen preferred a writ petition being c.w.j.c. no. 173 of 1981 (r) which was also dismissed as withdrawn vide order dated 25.2.1981 passed by the hon'ble high court of judicature at patna, ranchi bench, ranchi. an application for grant of certificate to move the hon'ble supreme court under article 133(1) of the constitution of india was also rejected. there is no dispute about the fact that the aforesaid order thus attained finality. as regard to the relationship of employer and employee it held that the applicant are not workmen and section 33c(2) of the industrial dispute act can be invoked only after the determination of entitlement to receive from the employer any money or any benefit.6. in a recent judgment reported in : (2008)iillj1066sc at paragraph 12 (d. krishnan v. vellore coop. sugar mill) the hon'ble supreme court held that the proceeding under section 33c(2) are in the nature of execution proceedings and such proceedings presupposes some adjudication leading to the determination of a right, which has to be enforced. concededly there has been no such adjudication in the present case. in brijpal singh case reported in : air2006sc3592 the hon'ble supreme court at paragraph 10 held as under:10. it is well settled that the workman can proceed under section 33c(2) only after the tribunal has adjudicated on a complaint under section 33a or on a reference under section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. this court in punjab beverages (p) ltd. v. suresh chand held that a proceeding under section 33c(2) is a proceeding in the nature of execution proceeding in which the labour court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to compute the benefit in terms of money. proceeding further, this court held that the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer.7. it will be evident that the issue is no more res-integra and even in recent judgment reported in : (2009)illj679sc (kanpur electricity supply company limited v. shamim mirza) the hon'ble supreme court held that the burden to prove employment under a particular management primarily lies in a person to be so, and this is essentially a question of fact to be determined on the entire material. thus unless the issue of employer-employee relationship and as to whether they are workman or not of the employer is determined, the question of directly invoking section 33c(2) cannot be justified.8. even in the impugned order the tribunal has left it for the management to fix the quantum and the amount under different heads which also supports the contention of the management that there was no determination of a right nor the entitlement was decided which has to proceed before invoking section 33c(2) of the industrial disputes act.9. the second issue in question which also requires consideration is as to whether the filing of the second application under section 33c(2) of the industrial dispute act was barred principles of res-judicata.10. in view of the aforesaid order dated 2.2.1981 wherein it was specifically held that the applicants therein were not workman of telco and instead they were the workmen of contractor and parties were also the same and thus, the second application for the same relief under section 33c(2) is barred by the principles of res-judicata more so when the appeal preferred against the order passed before the high court was also dismissed as withdrawn. in any event the amended reference dated 5.7.95 has specifically referred the issue of employer and employee relationship for adjudication before the labour court. the learned senior counsel for the petitioner has informed that the reference has been decided in their favour recently holding that there was no employer and employee relationship.11. considering the aforesaid facts and circumstance of the case, the labour court vides its impugned order travelled beyond the scope of jurisdiction and authority in passing order under section 33c(2) and thus, the same is quashed.12. this writ petition is accordingly allowed.